LAWRENCE J. CHASTANG
v.
ORANGE COUNTY CODE ENFORCEMENT BOARD
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Ninth Judicial Circuit Court reversed a Special Magistrate's Code Enforcement Board decision finding appellants violated Orange County's dredge and fill ordinance. The court determined there was insufficient evidence that appellants' lakefront wall was built waterward of the Normal High Water Elevation, as the evidence relied upon by the county was speculative regarding conditions at the time of construction in 2006.
The court held there was insufficient evidence to support the violation finding. Appellants properly relied on the certified surveyor's initial survey submitted with their permit application and the building permit they received, and were not required to obtain a dredge and fill permit.
[1] A finding of violation by a special magistrate requires sufficient competent evidence to support the decision and implicit findings.
[2] A permit issued by a building inspector following proper application and survey may negate the need for a separate dredge and fill permit.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Appellants properly relied upon the survey submitted with the permit application and the building permit. They were not required to obtain a dredge and fill permit.”
The court's core holding that appellants complied with applicable requirements and did not violate the ordinance.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellants Lawrence and Dora Chastang constructed a seawall on their lakefront property in April-May 2006, following the 2004 hurricanes. They obtaine…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Code Enforcement cases and more on FLexlaw
Before POWELL, BRONSON, LAUTEN, J.J.
PER CURIAM.
FINAL ORDER REVERSING TRIAL COURT
Appellants Lawrence J. Chastang and Dora P. Chastang timely appeal from a decision of the Special Magistrate for the Orange County Code Enforcement Board (CEB), dated November 26, 2008, finding Appellants in violation of a certain code section applicable in Orange County, Florida. Specifically, Appellants’ lakefront property was found to be in violation of section 15-218, Orange County Code of Ordinances (Code), for an unauthorized dredge and fill in county waters.1 The order, as the Court understands it, requires Appellants to remove the wall and fill behind the wall, restore the shoreline, and pay a penalty in the amount of $7,000. The order also imposes a fine of $250 per day for each day the violation occurred after the stated compliance date.2 This Court has jurisdiction pursuant to Florida Rule of Appellant Procedure 9.030(c)(1)(C). We dispense with oral argument pursuant to Florida Rule of Appellate Procedure 9.320.
The parties stipulated that if the wall was built landward of the Normal High Water Elevation (NHWE), which the county set at 98.5 in 1998, only a building permit would be required. However, if the wall was built waterward of the NHWE, both a building permit and a dredge and fill permit would be required. Therefore, the issue before this Court is whether there is sufficient competent evidence to support the findings and decision of the Special Magistrate that the violation occurred, that is to say, to support the Special Magistrate’s implicit finding that the wall was built waterward of the NHWE in violation of the above-cited code provision.3
It is undisputed, as shown by the transcript and exhibits in evidence, that the wall was built in April and May of 2006, after the hurricanes of 2004. It is also undisputed that Appellants applied for and received a building permit prior to constructing the wall. Along with the permit application, Appellants submitted a survey, completed by a certified surveyor, showing that the wall was to be built landward of the NHWE. Following construction, the wall was inspected and
In addition to the above undisputed evidence, Appellee presented the following evidence. On September 24, 2007, some seventeen months after the wall was constructed, a county surveyor conducted a survey which showed the wall waterward of the NHWE. During cross examination, the county surveyor admitted that lot elevations go up and down depending upon naturally occurring events. The Orange County Code also recognizes this phenomenon.4 The county surveyor also stated that he did not know what the normal high water conditions were on Appellants’ lot in April of 2006. In addition, the Environmental Protection Division (EPD) inspector opined that the wall was waterward of the NHWE when it was constructed. The inspector based her opinion on the county survey, her observations from 2007 that the wall had “water stains” above the lake’s water level, and her interpretation of three documents admitted in evidence.5 The inspector further opined that Appellants had put fill in their backyard when building the wall; however, there was no other evidence in the record that Appellants had dredged or filled in, on or under the water of the lake while constructing the wall.
2010.
________/s/____________________
ROM W. POWELL Senior Judge
________/s/_____________________ ________/s/____________________ THEOTIS BRONSON
FREDERICK J. LAUTEN Circuit Judge
Circuit Judge
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing order was furnished via U.S. mail on this 11 day of March , 2010, to the following: William G. Osborne, Esquire, 538 E. Washington Street, Orlando, Florida 32801 and Edward M. Chew, Esquire, Orange County Attorney’s Office, 435 N. Orange Avenue, Suite 300, Orlando, Florida 32801.
/s/
Judicial Assistant IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA
LAWRENCE J. CHASTANG and
CASE NO.: CVA1 08-70 DORA P. CHASTANG,
Appellants,
v. ORANGE COUNTY, FLORIDA,
Appellee.
/
ORDER DENYING MOTION FOR REHEARING
THIS MATTER came before the Court for consideration of Appellee’s “Motion for Rehearing or in the Alternative Motion for Remand,” filed on March 26, 2010, and Appellant’s “Response to Motion for Rehearing or in the Alternative Motion for Remand,” filed on April 8, 2010. This Court having reviewed the motion, the Final Order, entered on March 11, 2010, the court file, and being otherwise fully advised in the premises, finds as follows: It is hereby ORDERED AND ADJUDGED that Appellee’s Motion for Rehearing is DENIED.
DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida on this the ___20__ day of __________April____________, 2010.
_______/S/____________________
ROM W. POWELL
Senior Judge
_______/S/_______________________
______/S/_____________________ THEOTIS BRONSON
FREDERICK J. LAUTEN Circuit Judge
Circuit Judge CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been furnished via U.S. mail on this __20____ day of ____April____________, 2010, to the following: William G. Osborne, Esquire, 1305 E. Robinson Street, Orlando, Florida 32801 and Edward M. Chew, Orange County Attorney’s Office, 435 N. Orange Avenue, Suite 300, Orlando, Florida 32801.
______/S/_____________________
Judicial Assistant
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- City OF Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982)
- Orange Cnty. v. Butler, 877 So. 2d 810 (Fla. 5th DCA 2004)